Quinn v Bryant [2021] NSWDC 570 (13 September 2021)

Case Name:	Quinn v Bryant
Medium Neutral Citation:	[2021] NSWDC 570
Hearing Date(s):	24, 25 February; 8 April 2021
Date of Orders:	13 September 2021
Decision Date:	13 September 2021
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant in the sum of $108,853.10. (2) Order that the defendant pay the plaintiff’s costs of the proceedings. (3) Liberty to either party to apply in respect of the costs order by email to my associate within 14 days.
Catchwords:	LOAN – advances from uncle to niece – legal fees – stamp duty - whether advanced sum a loan or a gift – conditional gift – loan – limitation period – interest – date from which interest is payable
Legislation Cited:	Limitation Act 1969
Cases Cited:	Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd [1993] FCA 300; (1993) 11 ACSR 1 Chaudhary v Chaudhary [2017] NSWCA 222 Gray v Gray [2004] NSWCA 408 In the estate of the late Patrick Ambrose Tunchon [2019] NSWSC 802 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Terence Quinn (plaintiff) Susan Bryant (defendant)
Representation:	Counsel: Mr P Wallis (plaintiff) Mr A Moutasallem (defendant) Solicitors: Pryor Tzannes & Wallis (plaintiff) Hancock Alldis & Roskov (defendant)
File Number(s):	2019/298560
Publication Restriction:	None

1 Terence Quinn is Susan Bryant’s uncle. He sues her for repayment of monies he provided starting about a decade ago. She says the monies were a gift.

2 Mr Quinn paid $55,000 to Ms Bryant’s initial litigation solicitor in four payments in 2011, and $5,692.57 in 2012 to her current solicitor who acted for her on the appeal in that litigation. Mr Quinn also paid $34,660 for her stamp duty charged on a purchase of property at Riverwood on about 24 October 2013. In respect of these payments, the primary issue is whether the monies were provided as a gift or a loan.

3 Mr Quinn alleges that he also provided a further $8,000 by way of loan to Ms Bryant on 3 May 2013. There is a question as to whether those funds were provided, and also, again, whether, if they were, was it by way of a gift or a loan.

4 The final issue is whether all but the stamp duty payment is statute-barred. The proceedings were commenced on 24 September 2019.

5 Joan Quinn, Mr Quinn’s mother, is elderly. In the years until 2009 she was given some personal and domestic care by her daughter, Elizabeth, Susan Bryant’s mother, until Elizabeth died in 2009.^[1] At that time, Joan Quinn was residing in Chifley, in the south-eastern suburbs of Sydney.

6 Mr Quinn was the sole operator of a cleaning business and lived reasonably proximate to his mother in a unit in Eastlakes. Ms Bryant lived with her two children in a Housing Commission unit in Allawah, near Blakehurst in the St George area on the western side of the airport.

7 Mr Quinn found difficulty in caring for his mother. Elizabeth had two daughters.^[2] Mr Quinn invited Ms Bryant to take over that role. Ms Bryant said that could only occur if she lived with or closer to her grandmother, Ms Joan Quinn. Ms Bryant did not want to leave the area where she resided, or move her children from the schools in which they were enrolled.

8 A plan was proposed whereby Ms Quinn would sell her house in Chifley, and buy a home in the Blakehurst area where she would live in a granny flat and Ms Bryant and her children would live in the house. But this plan involved Ms Bryant giving up the security and economy of her Housing Commission apartment. So ultimately it was agreed between Ms Bryant, Ms Quinn and Mr Quinn that if the arrangement failed, the Blakehurst property would be sold and Ms Bryant would receive some funds to enable her to purchase another residence.

9 The parties might not have fully agreed on or recalled the precise terms of this arrangement, but for reasons which shall appear that is not material to the present proceedings.

10 The arrangement proceeded. In September 2009, Ms Quinn executed a power of attorney in favour of Ms Bryant, and thereafter Ms Quinn sold her Chifley property and bought a Blakehurst property. The property had space for a granny flat, and while it was being built, from February 2010 the house accommodated Ms Bryant, her partner and her two children, and Ms Quinn and her companion.

11 In March 2010 Ms Quinn signed a building contract for construction of the granny flat. In April 2010 Ms Bryant terminated her Housing Commission tenancy. By about July 2010, the granny flat was completed, but the arrangement and relationship between Ms Bryant and Ms Quinn had broken down. Ms Quinn and her companion left the Blakehurst property in October 2010.

12 In early 2011, Ms Quinn commenced Supreme Court proceedings in respect of the Blakehurst property, against Ms Bryant. Mr Quinn supported Ms Bryant in those proceedings. He took out a loan to cover the costs.^[3] He found her a solicitor, Mr Vasso Tsolakis, and in 2011 made four payments totalling $55,000 to Mr Tsolakis for legal costs. Mr Quinn was very confident that Ms Bryant would be successful in the proceedings.^[4] He gave evidence of an express oral acknowledgment by his mother, Ms Quinn, that Ms Bryant would receive “half the value of the home for being the carer”.^[5]

13 Ms Bryant succeeded in the proceedings. The Supreme Court judgment confirmed that Ms Bryant was to receive half of the proceeds of sale of the Blakehurst property, and costs.^[6] Ms Quinn appealed, but Ms Bryant was again successful. Ms Bryant ceased using Mr Tsolakis after the trial and retained her current solicitors for the appeal. As indicated, Mr Quinn paid $5,692.57 to Ms Bryant’s appeal solicitors in 2012.

14 Subsequently in late 2016 and 2017, Ms Bryant received funds from Ms Quinn’s trustee in satisfaction of the costs orders in the proceedings, including the appeal.

15 Mr Quinn claimed that in May 2013 he provided $8,000 by way of loan to Ms Bryant.

16 Ms Bryant received $462,367.75 in two payments from the proceeds of the sale of the Blakehurst property on 25 September 2013, paid into her solicitor’s trust account. She received $446,405.75 from her solicitor while the remaining $15,962 was retained by her solicitor to cover counsel’s fees in respect of the appeal.^[7]

17 Ms Bryant used her share of the proceeds from the settlement of the Blakehurst property to purchase a property in Riverwood for $870,000. She gave evidence that she had a loan of $500,000^[8] approved and “more than $10,000 in savings”.^[9] She informed Mr Quinn that she could not afford the stamp duty on the basis that she had only $360,000 available from the Blakehurst sale.^[10] As a result of this claimed inability, Mr Quinn provided her with a bank cheque in the sum of $34,660 for stamp duty on 24 October 2013.

18 Mr Quinn and Ms Bryant had discussed Mr Quinn living in a granny flat on the property at Riverwood,^[11] but that did not eventuate. The Riverwood property was sold in 2018 for about $1,420,000.^[12] Ms Bryant deposed in November 2020 that she “now live[s] in a home at Camden”, although her affidavit of that date gave the Riverwood address.^[13]

19 Mr Quinn commenced the proceedings on 24 September 2019 for repayment of $103,352.57 in loans, comprising the $61,692.57 paid to the solicitors, the claimed $8,000 loan, and the $34,660.00 in stamp duty.

20 Mr Quinn was not always a careful witness. He was at times hasty with his answers without giving careful regard to the questions. As a result, on some occasions his evidence was inconsistent with his affidavit. He did on occasions make concessions, including that his recollection of long ago conversations was unlikely to be accurate. Whilst I accepted him to be honest, his occasional lack of care with his evidence, and his difficulty recalling matters long ago, and some oral evidence inconsistent with his affidavit, meant that it was difficult to rely on his evidence.

21 Ms Bryant appeared to be a more careful witness, and not argumentative, but as indicated, some of her answers conflicted with the documentary evidence, particularly on amounts of money. If demeanour were determinative, I might have been inclined to favour Ms Bryant. But Ms Bryant’s credit was damaged by her erroneous statements to Mr Quinn with regard to her financial position at the time of the Riverwood purchase, where she asserted without explanation that she told Mr Quinn she had received $360,000 from the Blakehurst property when she had received over $446,000.^[14]

22 Ms Bryant also gave evidence that she did not seek assistance from Mr Quinn. She deposed that:

However, Ms Bryant received from Mr Quinn $5,692.57 in June 2012, $34,660 in October 2013, and, it will appear, $8,000 in May 2013. As to the payment in June 2012, on her evidence, she told Mr Quinn: “I’m struggling to cope emotionally and financially. My lawyer has asked me for money and I’m struggling to pay it.”^[16] And as a result, Mr Quinn provided to her a cheque for $5,692.57, which was deposited in her solicitors’ trust account.^[17] I infer that Ms Bryant must also have informed Mr Quinn of the precise amount he was to pay her solicitors, despite her evidence that “I never discussed any financial situation of mine with my uncle”.^[18]

23 As to the stamp duty of the Riverwood property, Ms Bryant deposed that she told Mr Quinn “So, if it goes in the mid-800s I can afford it but I won’t have money for the stamp duty”,^[19] although, as she accepted, it was her first purchase of property, and she was not knowledgeable on stamp duty and the stamp duty rates.^[20] As indicated earlier, the statement was also factually incorrect in that she did have money for stamp duty.

24 In those circumstances, Ms Bryant’s evidence about not asking for money or discussing her financial affairs, and receiving only $360,000 from the Blakehurst property, appears disingenuous and misleading. In respect of the claimed absence of financial discussions, when confronted with the two occasions above, in June 2012 and October 2013, she stated: “Only two amounts... Only two amounts of my financial affairs”.^[21]

25 I also found her evidence about the timing of her conversation about an inability to pay the stamp duty – that is, prior to any proposed price being determined, offered or agreed, or the liability for or amount of stamp duty being determined – was unlikely.

26 In these circumstances, including the absence of any explanation for these statements, I was not inclined to regard Ms Bryant as a witness of credit.

27 It is well known, for the reasons explained in Watson v Foxman,^[22] that recollections of oral conversations, especially after the passage of significant time, are likely to be inaccurate. Parts become magnified or diminished in importance, and the precise expressions used are lost in the fog of time. The effect of conversations is more reliably to be discerned from the surrounding events and the documentary record.

28 In the present case, the differing recollections of Mr Quinn and Ms Bryant about conversations are important only in respect of the stamp duty paid by Mr Quinn. Neither pressed a relevant conversation before the provision of the various sums of money to Mr Tsolakis, or in respect of the funds provided to Ms Bryant’s appeal solicitors, or in respect of the claimed $8,000.

29 Evidence was also given by Ms Bryant’s partner and children about the stamp duty payment. Whilst there was no basis to challenge the honesty of that evidence, it also did not provide a compelling answer to the matter in dispute. Lapse of time impacts adversely on the reliability of a recollection of a conversation, particularly of those not directly interested in the content of the conversation. This evidence is considered below.

30 Neither party gave oral or affidavit evidence of the circumstances of the $8,000 payment. Mr Quinn included it in what he described in his affidavit as “further loan advances” at Ms Bryant’s request.^[23] Ms Bryant denied that she had borrowed $8,000, but claimed no recollection of any circumstances.^[24]

31 Mr Quinn’s bank account shows a debit by cheque number 522 for $8,000 on 3 May 2013. The cheque butt for cheque 522 records a date of “03-05-2013”, a payee of “Susan Bryant”, a subject matter of “Loan” and an amount of “8,000.00”.^[25] There was no challenge to the accuracy or contemporaneity of the handwriting on the cheque butt. It establishes at least, that Mr Quinn believed he was providing a loan to Ms Bryant, and that she received $8,000 on about 3 May 2013.

32 Mr Quinn in cross-examination indicated a recent recollection of the purpose of the payment, but neither counsel asked him to provide that recollection and it remained unstated. There was no documentary evidence indicating that the $8,000 amount was paid to Ms Bryant’s solicitors for the litigation. That a request for the funds was made by Ms Bryant seems likely, at least since it is not denied by Ms Bryant and there was nothing to suggest that Mr Quinn had any practice of depositing significant amounts of money into Ms Bryant’s account unprompted. Once a conversation is accepted to have occurred, I would infer that the conversation reflected Mr Quinn’s belief about the advance – that it was a loan as he recorded on the cheque butt.

33 For these reasons, I conclude on the balance of probabilities that on or shortly before 3 May 2013, Ms Bryant requested assistance, and Mr Quinn agreed to loan her $8,000, and that he provided those funds on 3 May 2013. As indicated, the record is silent on the other terms of that advance.

34 It follows that each of the amounts claimed by Mr Quinn was advanced by him to or for the benefit of Ms Bryant.

35 Mr Quinn accepted that prior to the litigation he had paid for a secretarial course for Ms Bryant from his mother’s funds,^[26] out of a desire to help his sister’s children.^[27] He occasionally gave gifts to Ms Bryant’s children.^[28] But he resisted the suggestion that he loved Ms Bryant,^[29] that he (as at 8 March 2011) had a close relationship with Ms Bryant,^[30] or her children^[31] or that by the provision of gifts he preferred them over other family members.^[32]

36 Mr Quinn asserted that Ms Bryant knew he was paying the solicitor, Mr Tsolakis. But Mr Quinn accepted in cross-examination that when he made payments to Mr Tsolakis, he did not tell Ms Bryant that he was “expecting any of the money back”,^[33] and that there was no discussion at the time of the payment to Mr Tsolakis about the repayment of these funds^[34] even though his affidavit contained conversations of a loan to Ms Bryant.^[35]

37 Ms Bryant’s evidence was to the same effect, that there was no conversation about repayment.^[36] She deposed:

38 This evidence of Mr Quinn and Ms Bryant does not establish a loan. As Young CJ in Eq explained in the Court of Appeal decision in Gray v Gray:

39 That the monies paid to Mr Tsolakis were not loaned to Ms Bryant is not the end of the matter. Although they were not lent, neither were they given directly and absolutely to Ms Bryant. The funds were provided to Mr Tsolakis to pay for the litigation. There was no evidence that Mr Quinn intended for the funds paid to Mr Tsolakis to be the absolute property of Ms Bryant.

40 In Chaudhary v Chaudhary,^[39] the Court of Appeal considered funds provided by a father to his son and daughter-in-law for a deposit on the purchase of a property. The Court of Appeal concluded that although the funds were a gift, it was not unconditional. The “appropriate characterisation” was of a “conditional gift”, conditional on the completion of the purchase. In the result, when the purchase did not proceed to completion, and the deposit was returned, the condition on the gift was unfulfilled. In that circumstance, the deposit funds belonged to the father, the giver of the gift.^[40]

41 The same principle applies to the provision of the funds by Mr Quinn. The gift was not unconditional. Rather, the appropriate characterisation was of a gift conditional on the funds being used up in the litigation. In the ultimate result that did not occur, as the funds were ultimately recovered, or largely recovered, when Ms Quinn or her trustee, some years later, met the costs orders and largely repaid the funds expended. Like in Chaudhary, those unexpended funds provided by Mr Quinn belonged to Mr Quinn and he remained entitled to them when they were recovered.

42 Had the litigation not been successful, Mr Quinn would have had no claim against Ms Bryant in respect of the fees of Mr Tsolakis that he paid. When the action was successful, and an order for payment of Ms Bryant’s costs was obtained, the funds refunded belonged to Mr Quinn because the condition of expenditure in the litigation was unfulfilled.

43 Ms Bryant knew amounts were recovered, she said, but not the amount.^[41] Her answer to Mr Quinn’s entitlement to legal costs recovered was “There was no discussion about that”.^[42] That is not an answer to Mr Quinn’s entitlement.

44 Mr Tsolakis’ solicitor/client costs of the trial were assessed at $116,779.32. In that assessment, $61,550.59 was treated as having been paid, leaving a net sum of $55,228.83 owing to Mr Tsolakis.^[43] Of the sum of $112,000 paid by the New South Wales Trustee and Guardian, on behalf of Ms Quinn in respect of the party/party costs of the trial, $55,228.83 was paid to Mr Tsolakis’ firm in respect of the amount that remained owing to him, and the remaining $56,771.17 was paid into Ms Bryant’s solicitors’ trust account on 12 December 2016.

45 The sum of $56,771.17 represented a refund of 92.23% of the $61,550.59^[44] costs paid to Mr Tsolakis. As Mr Quinn paid $55,000 of the costs of $61,550.59 paid to Mr Tsolakis, I deduce that Ms Bryant paid the residual $6,550.59 of the trial costs, this being the difference between what Mr Quinn paid and what Mr Tsolakis received.

46 Ms Bryant asserted that she paid $25,000 on 1 June 2011 to Mr Tsolakis, as a result of a request by Mr Tsolakis for that sum.^[45] She relied on a receipt from Mr Tsolakis’ trust account. She produced no other documents to prove this payment.

47 In respect of this claimed payment of $25,000, Ms Bryant deposed that she was told by Mr Tsolakis “It’s coming up for hearing and we’re expecting a good outcome. You should get this money back”.^[46] Ms Bryant asserted that she had this money from an inheritance from her mother.^[47]

48 The day prior to the date of the trust account receipt, 31 May 2011, Mr Quinn handed over a cheque for $25,000 to Mr Tsolakis’ trust account.^[48] So a question arose as to whether the trust account receipt corresponded with and was further proof of Mr Quinn’s uncontroversial payment of $25,000 by cheque made payable to Mr Tsolakis’ trust account the previous day,^[49] or represented a further payment of the same amount at the same time by Ms Bryant.

49 The former seems more likely, namely that Mr Quinn gave the cheque to Ms Bryant, who then received the receipt from Mr Tsolakis. Mr Tsolakis’ costs paid included only $61,550.99^[50] and Mr Quinn paid $55,000 of that sum. Had Ms Bryant paid an additional $25,000 in addition to the $55,000 paid by Mr Quinn, the minimum amount received by Mr Tsolakis would be $80,000. The coincidence of the date, amount, and payee; the lack of explanation as to how Mr Quinn and Ms Bryant would both pay $25,000 to Mr Tsolakis at the same time, the unconvincing reference to an otherwise unexplained and unsupported inheritance, the absence of any other documentary evidence, and the inconsistency with the amount received by Mr Tsolakis, leads me to conclude on the balance of probabilities that Ms Bryant was in error when deposing that she paid $25,000 to Mr Tsolakis on 1 June 2011, at least if she was asserting that it was from her own resources and not from Mr Quinn.

50 As 92.23% of the trial costs were recovered, each of Mr Quinn and Ms Bryant should receive that proportion of the amount they respectively paid. Mr Quinn is entitled to $50,729.24, being his share of the costs recovered.

51 The funds paid to Mr Tsolakis were not recovered for several years. Mr Quinn was not entitled to the funds in that period so he is also not entitled to interest in that period. He is entitled to interest on $50,729.24 from the date the repaid monies were received, at the statutory rates; that is from 12 December 2016 until judgment.

53 Ms Bryant’s current solicitors received $41,419.67 in respect of the appeal and the costs of the costs assessment. This sum was not apportioned between its two components.

54 As to the residue of these costs apparently not paid by Mr Quinn, Ms Bryant paid $4,000 on 19 March 2012, $10,000 on 8 November 2012 and $200 on 28 March 2013.^[51] Other funds she paid came from proceeds received by her from the sale of the Blakehurst property or from the costs paid by the NSW Trustee. Thus, there is evidence that she made cash payments of $14,200 in respect of the appeal and $6,550.59 in respect of the trial, a total in excess of $20,700, whether from the inheritance of which she spoke or otherwise.

55 Ms Bryant received $23,000 from the NSW Trustee in respect of the appeal costs.

57 Whether this request was connected to the $8,000 loan in 2013, or the $5,692.57 in respect of the appeal costs, was not specified.

I said	‘I’ve gone to another lawyer to act for me in the appeal that nan has put in. I don’t trust Vasso anymore. I’m struggling to cope emotionally and financially. My lawyer has asked me for money and I’m struggling to pay it.’
Terry	‘I’ll look after it. Don’t worry.’

59 Evidently there must have been some further information conveyed from Ms Bryant to enable Mr Quinn to specify the sum of $5,692.57 on the cheque.

60 Mr Quinn’s account of a loan of the funds provided for the appeal is supported by the writing on the cheque butt recording “LOAN” against this payment.^[54] Further, even if Ms Bryant’s account is accepted, the words “I’ll look after it” do not evidence an unconditional gift. Mr Quinn was again paying Ms Bryant’s legal costs, although on this occasion to a solicitor he had not chosen.

61 So were these funds provided as a conditional gift, recoverable only if not expended in the litigation, like the payments to Mr Tsolakis, or were they provided as a loan? The matter is finely balanced, but the contemporaneous and unchallenged note on the cheque butt indicates a loan. That is sufficient to persuade me of that arrangement on the balance of probabilities.

62 The surrounding circumstances included the parties’ knowledge that any recovery of these funds from Ms Bryant likely depended upon success in the litigation and, in particular, successfully resisting the appeal. I am not persuaded that any obligation of repayment arose until Ms Bryant received funds from the litigation. That first occurred on 25 September 2013, when her solicitor received $433,761 and $28,606.05 from the sale. On that date, an obligation to repay the sum of $5,692.57 arose. Mr Quinn is entitled to repayment of that sum and interest on that sum from 25 September 2013 to date.

63 Mr Quinn was not entitled to be repaid the litigation funds he provided to Mr Tsolakis unless and until they were recovered from Ms Joan Quinn. This removes the limitation question. Recovery of the litigation costs first occurred on 12 December 2016. The non-payment of those funds on that date gave rise to Mr Quinn’s claim. His entitlement then accrued. His subsequent proceedings were commenced on 24 September 2019, well within the limitation period from the date in 2016 when the claims accrued.

64 The date of commencement of proceedings is also just within the six years from the date of 25 September 2013, when the obligation of Ms Bryant to repay the loan of $5,692.57 accrued. The claim for repayment of that loan is also therefore not statute-barred.

65 The $8,000 loan is in a different category. In the absence of any evidence, it was a loan repayable at will,^[55] and the cause of action for recovery dates from the provision of the funds. The funds were provided on 3 May 2013, more than six years prior to the proceedings being commenced in September 2019. There was no evidence that the funds were provided in connection with the litigation, and Ms Bryant’s solicitors’ trust account statement indicates the contrary.^[56] Mr Quinn raised no valid point against a limitation period defence, nor that repayment was conditional upon or awaited some certain event within the limitation period. I am satisfied that the limitation period for recovery of these loan funds expired prior to the commencement of proceedings, and recovery by Mr Quinn is thus statute-barred.

66 I have referred earlier to the funds Mr Quinn provided to Ms Bryant to pay the stamp duty on the purchase of the Riverwood property. He gave the following evidence:

68 Mr Quinn also deposed to a subsequent conversation relating to the stamp duty after the provision of the funds:

72 Mr Quinn denied the conversation deposed to by Ms Bryant occurred. He deposed:

The reserve price was not reached at the auction and the top bidders were invited to make further offers by the selling agent.^[66] Ms Bryant’s offer of $870,000 was accepted.

73 As indicated earlier, Ms Bryant’s evidence concerning this transaction is problematic. She misstates her financial position as she received not “$360,000 from Blakehurst”,^[67] but $446,405.75.^[68] She did not provide any explanation for this error. Further, Ms Bryant stated that she did not inform Mr Quinn of her financial position^[69] nor request funds from him. But she did speak incorrectly of her financial position and at least implicitly requested assistance. She had sufficient cash in the bank to meet the stamp duty obligation despite her assertion to the contrary.

74 Mr Quinn’s evidence that he was never provided with the details of Ms Bryant’s finances sits more comfortably with Ms Bryant’s evidence. But her assertion that she “was determined...not to rely on Terry or anybody else in relation to costs arrangements for my legal affairs. I do not ask people for money, including the plaintiff”^[70] misstates what occurred. She complained about her limited resources, both in relation to the payment of $5,692.57 and the stamp duty, and accepted those payments and the $8,000 from Mr Quinn.

75 Ms Bryant’s daughter, Tahleah Bryant, deposed in November 2020 to having attended two open houses with her family at the Riverwood property, and at the second one, she recounted a conversation in about mid-2013, when she was 16 years’ old, “down the back, under the patio”^[71] of the property where Ms Bryant said: “I really want this house but I’ve done my sums and I can’t afford it. I’ve got the money for the house but I can’t afford the stamp duty”. And Mr Quinn said: “I’ll give you the money for the stamp duty. I know what you guys have been through”.^[72]

76 Tahleah was unable to recall any discussion about figures for the stamp duty, the purchase price or how much money her mother had available.^[73]

77 Shaylee El-Helou, an older daughter of Ms Bryant, also gave evidence. She deposed to attending only one open house, and believed “it was the first one”.^[74] She recounted her mother saying: “I can only go so far. I won’t have money for the stamp duty” and Mr Quinn responding: “Given what you’ve been through, I will give you the stamp duty”. Her affidavit continued “Mum look surprised and said words to the effect ‘Are you sure?’ He said ‘Yes’”.^[75]

78 Ms El-Helou said the conversation took place under the back pergola, near the pool. She also did not recall figures, neither about what her mother could afford, or what she eventually paid for the property. She accepted that her mother may have been saying “that if she if she spent too much on the purchase price, she wouldn’t be able to afford stamp duty”.^[76]

79 Mr Fouad Khalil Chaaban, the de-facto husband of Ms Bryant, also gave evidence. He said Ms Bryant told him in early 2013 that:

80 Subsequently after seeing the Riverwood property, Mr Chaaban said Ms Bryant said to him:

81 Mr Chaaban said Mr Quinn came to an inspection at the Riverwood property when Ms Bryant said to him: “Terry we love this property but I don’t think we can afford to buy it. I can get about $850,000 but I just don’t have the stamp duty”.^[79] Thereafter, Mr Quinn said, “I suggest that you put an offer for $870,000 and I reckon you will get it”. Ms Bryant said, “But Terry I don’t have the money for the stamp duty. I could get the $870,000. But that’s all I’ve got”. Mr Quinn then said, “I will give it to you”. Ms Bryant responded, “Oh. Thank you”.^[80]

82 Similar though untested evidence was given by Ms Bryant’s de-facto son-in-law,^[81] who was unavailable for cross-examination.

83 This evidence from Ms Bryant’s family has similarities and differences, but none are especially confirmatory or troubling. There is a consistency of Mr Quinn saying he would give Ms Bryant the stamp duty when they were at the open house. However, the effect of the passage of time, the circumstance that any recollection was of family members overhearing a conversation between Ms Bryant and Mr Quinn which they were neither directly involved nor aware of the details of the stamp duty, that the account each gives does not expressly preclude there being a loan, the corrupting effect of likely conversations about the subject matter in the intervening years, and their common interest in supporting their mother or partner, Ms Bryant, all leaves this evidence less than compelling.

84 The parties also disagreed about the purpose of the purchase: Mr Quinn said it was for investment, a matter denied by Ms Bryant. The surrounding evidence is ambivalent: the house was purchased on or about 24 October 2013,^[82] and sold in about 2018.^[83]

85 Finally, Ms Bryant gave an incorrect address in her affidavit, that her address was at Riverwood not at Camden. That was not explored and may be explained by solicitor error.

86 Ms Bryant was Mr Quinn’s niece, not his daughter, so there could be no presumption of advancement in relation to funds provided. Nor was there evidence of a particular need (other than Ms Bryant’s incorrect evidence, having only $360,000 from the Blakehurst sale) that would cause Mr Quinn to provide a gift. This can be contrasted with the circumstances arising at the time of the trial when Ms Bryant had forfeited her Housing Commission home, had yet to receive any funds, and Mr Quinn viewed himself as partly responsible for Ms Bryant’s predicament.

87 It was common ground that Mr Quinn agreed to and did provide the stamp duty. Whether this was a gift or a loan was not, in my view, to be determined merely by evidence that he said “I will give you the money”, less still by the evidence of those with familial loyalty to Ms Bryant having a decade-old recollection of him saying so, but having a different recollection of the terms of the conversation.

88 One significant difference between the competing accounts was whether the conversation occurred before or after contract. Ms Bryant and her family said it occurred at the one and only inspection of the property with the family undertaken by Mr Quinn some weeks before contract. Mr Quinn said it occurred with Ms Bryant only after the contract. Perhaps there was more than one conversation. But is seems unlikely that the obligation would be stated definitively at a time when it remained of an uncertain character.

89 Further, Ms Bryant’s evidence that Mr Quinn said the Riverwood home was for family gatherings is unconvincing as a reason for a gift in circumstances were the family had just concluded lengthy litigation in which Ms Bryant was ultimately successful.

90 I am compelled to choose between the accounts of Mr Quinn and Ms Bryant. I have indicated some reasons why I do not accept Ms Bryant as a witness of truth. Another reason is her denial of any conversations with Mr Quinn about repayment of the funds prior to the commencement of proceedings. The former relationship that existed between them, where Mr Quinn repeatedly gave her financial assistance, renders it more likely that such conversations would occur before proceedings were commenced. I accept Mr Quinn’s evidence that he did have such a discussion and was rebuffed. If the denials of such conversations in Ms Bryant’s affidavit were carefully worded so as not to preclude the possibility of differently phrased conversations, that is not a point in her favour on credit.

91 Mr Quinn’s delayed attempts at recovery of the stamp duty monies may ordinarily militate against his claim, although the family relationship, his generosity and his ignorance of the details of Ms Bryant’s financial position lessens the adverse impact of this circumstance.

92 Ultimately, the most persuasive matters in Mr Quinn’s favour are my findings of him to be a truthful if sometimes unreliable witness, and the circumstance that he had previously provided funds by way of loan in the period shortly before the stamp duty. That he loaned Ms Bryant funds for her appeal solicitors, and $8,000 for an unspecified purpose, as confirmed by the cheque butts but denied by Ms Bryant, is a matter in his favour, and I am persuaded that the arrangement in respect of the stamp duty was of a similar nature. The time for repayment might have been less than clearly expressed, but I find that both parties understood that the provision of stamp duty was not a gift, but rather a loan, made by a historically generous uncle who might never insist on repayment, but a loan nonetheless. On this occasion, Mr Quinn has insisted on repayment. The objective independent third party knowing of the surrounding circumstances and past loans, and viewing the transaction and conversation, would, in my view, conclude that Ms Bryant was obliged to repay the funds, should Mr Quinn demand it.

93 In all these circumstances, I accept Mr Quinn’s account on the balance of probabilities that the funds were a loan, with an uncertain repayment date. In this event, like the $8,000 loan, the effect is to make the funds repayable on demand. It was not disputed that the Limitation Act 1969 had no application to funds provided in respect of the stamp duty, because the proceedings were commenced within the limitation period dating from the provision of the funds.

94 Mr Quinn is entitled to recover $50,729.24, being the proportion of the litigation costs paid by him to Mr Tsolakis that was repaid by Ms Joan Quinn. He is likewise entitled to recover $5,692.57 in respect of the recovery of appeal costs.

95 Interest is payable on these amounts, on the $50,729.24 from 12 December 2016 and on the $5,692.57 from 25 September 2013.

96 Finally, Mr Quinn is entitled to be repaid the amount paid as stamp duty of $34,660, plus interest. As there was no evidence of the date of the oral demands, and there being no written demand, interest should run from the commencement of proceedings on 24 September 2019 to date.

97 The total amount, including interest is $108,853.10 comprising of the following:

	$
Payments to Mr Tsolakis	50,729.24
Interest on $50,729.24 from 12 December 2016 to date	12,206.69
The appeal costs	5,692.57
Interest on $5,692.57 from 25 September 2013 to date	2,515.14
Stamp duty	34,660.00
Interest on $34,660 from 24 September 2019 to date	3,049.46
Total	108,853.10

(3) Liberty to either party to apply in respect of the costs order by email to my associate within 14 days.

^[1] T19/3-32.
^[2] T22/39-40.
^[3] Affidavit of Terence Quinn, 8/10/20 at [21]; CB 23.
^[4] T34/50; T35/16; T37/44; T38/48.
^[5] Affidavit of Terence Quinn, 8/10/20 at [13]; CB 22.
^[6] Affidavit of Terence Quinn, 8/10/20 at [25], [26]; CB 24.
^[7] Affidavit of Susan Bryant, 23/11/20 at Annexure E; CB 124.
^[8] Affidavit of Susan Bryant, 23/11/20 at [36]; CB 108.
^[9] Affidavit of Susan Bryant, 23/11/20 at [38]; CB 109.
^[10] Affidavit of Susan Bryant, 23/11/20 at [36]; CB 108.
^[11] Affidavit of Terence Quinn, 8/10/20 at [31], [35]; CB 25-26. Affidavit of Susan Bryant, 23/11/20 at [40]; CB 109.
^[12] Affidavit of Terence Quinn, 8/10/20 at [49]; CB 29.
^[13] Affidavit of Susan Bryant, 23/11/20 at [42]; CB 110.
^[14] Affidavit of Susan Bryant, 23/11/20 at Annexure E; CB 124.
^[15] Affidavit of Susan Bryant, 23/11/20 at [51]; CB 112.
^[16] Affidavit of Susan Bryant, 23/11/20 at [45]; CB 110.
^[17] Affidavit of Susan Bryant, 23/11/20 at Annexure E; CB 124.
^[18] T81/4.
^[19] Affidavit of Susan Bryant, 23/11/20 at [36]; CB 108.
^[20] T71/20; 71/42-43.
^[21] T83/37-41.
^[22] (1995) 49 NSWLR 315 at 318-319.
^[23] Affidavit of Terence Quinn, 8/10/20 at [23]; CB 23.
^[24] Affidavit of Susan Bryant, 23/11/20 at [45]; CB 110.
^[25] Exhibit A; CB 83.
^[26] T15/25-49.
^[27] T16/5.
^[28] T17/17.
^[29] T16/29; T35/20.
^[30] T14/33.
^[31] T17/4.
^[32] T17/9-14.
^[33] T39/14.
^[34] T39/26-36.
^[35] Affidavit of Terence Quinn, 8/10/20 at [20]; CB pp 22-23. Affidavit of Terence Quinn, 1/2/21 at [33]; CB 93.
^[36] Affidavit of Susan Bryant, 23/11/20 at [33]; CB 108.
^[37] Affidavit of Susan Bryant, 23/11/20 at [33]; CB 108.
^[38] [2004] NSWCA 408 at [15]- [16].
^[39]

[2017] NSWCA 222.

^[40] See Chaudhary v Chaudhary

[2017] NSWCA 222

[98]

[99]

.
^[41] T68/30-36.
^[42] T78/30.
^[43] Affidavit of Susan Bryant, 23/11/20 at Annexure C; CB 120.
^[44] Affidavit of Susan Bryant, 23/11/20 at Annexure C; CB 120.
^[45] Affidavit of Susan Bryant, 23/11/20 at [34]; CB 108.
^[46] Affidavit of Susan Bryant, 23/11/20 at [34]; CB 108.
^[47] Affidavit of Susan Bryant, 23/11/20 at [34]; CB 108.
^[48] Exhibit A, CB 40.
^[49] Exhibit A, CB 83.
^[50] Affidavit of Susan Bryant, 23/11/20 at Annexure C; CB 120.
^[51] Affidavit of Susan Bryant, 23/11/20 at Annexure E; CB 124.
^[52] Affidavit of Terence Quinn, 8/10/20 at [22]; CB p 23.
^[53] Affidavit of Susan Bryant, 23/11/20 at [45]; CB 110.
^[54] Exhibit A, CB 83.
^[55] See In the estate of the late Patrick Ambrose Tunchon [2019] NSWSC 802 at [99]- [100], Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd [1993] FCA 300; (1993) 11 ACSR 1, 4.
^[56] Exhibit A, CB 124.
^[57] Affidavit of Terence Quinn, 8/10/20 at [35]; CB 26.
^[58] Affidavit of Terence Quinn, 1/2/21 at [39]; CB 93.
^[59] Affidavit of Terence Quinn, 8/10/20 at [38]; CB 26.
^[60] Affidavit of Terence Quinn, 8/10/20 at [43]; CB 28.
^[61] Affidavit of Terence Quinn, 8/10/20 at [45]-[46]; CB 28.
^[62] Affidavit of Susan Bryant, 23/11/20 at [36]; CB 108-109.
^[63] Affidavit of Susan Bryant, 23/11/20 at [39]; CB 109.
^[64] Affidavit of Susan Bryant, 23/11/20 at [55], [56].
^[65] Affidavit of Terence Quinn, 1/2/21 at [36]; CB 93.
^[66] Affidavit of Terence Quinn, 1/2/21 at [38]; CB 93.
^[67] Affidavit of Susan Bryant, 23/11/20 at [36]; CB 108.
^[68] Affidavit of Susan Bryant, 23/11/20 at Annexure E; CB 124.
^[69] T81/4.
^[70] Affidavit of Susan Bryant, 23/11/20 at [51]; CB p 112.
^[71] T86/14-16.
^[72] Affidavit of Taleah Bryant, 23/11/20 at [10]; CB 135.
^[73] T87/15-22.
^[74] T88/47.
^[75] Affidavit of Shaylee El-Helou, 23/11/20 at [10]; CB 140.
^[76] T90/28-33.
^[77] Affidavit of Fouad Khalil Chaaban, 23/11/20 at [9]; CB 129.
^[78] Affidavit of Fouad Khalil Chaaban, 23/11/20 at [10]; CB 129.
^[79] Affidavit of Fouad Khalil Chaaban, 23/11/20 at [11]; CB 129.
^[80] Affidavit of Fouad Khalil Chaaban, 23/11/20 at [12]; CB 129.
^[81] Affidavit of Paul El-Helou, 27/11/20 at [4].
^[82] Affidavit of Susan Bryant, 23/11/20 at [39]; CB 109.
^[83] Affidavit of Susan Bryant, 23/11/20 at [42]; CB 110.

District Court of New South Wales

Quinn v Bryant [2021] NSWDC 570 (13 September 2021)